Legal Advisor to Torah Mitzion
Israel’s General Security Services (GSS) have been on high alert following a warning about expected terror attacks in public places.
After a recent suicide-bomber incident in central Jerusalem, which fortunately caused no fatalities, police helicopter pursuit lost track of a man fleeing the scene on foot as he got into a light brown car, but later picked up a similar abandoned vehicle in one of the eastern Jerusalem neighborhoods. The car was immediately traced to a resident in another area – where a small bomb factory was discovered; the owner was arrested, but is refusing to cooperate with GSS investigators.
The bombs in the factory are of the kind previously used in suicide bombings and the suspect is presumed to be linked to a well-organized network of suppliers, perpetrators and assistants and alternative terror cells through some of his contacts. The information he could provide may well save victims from a repeat attempt targeted at the Israeli public. The clock is ticking to the next attack (the so-called “ticking bomb” scenario). What can the GSS do right now to obtain this information?
On September 6, 1999, nine Israeli Supreme Court Justices ruled unanimously that Israel’s General Security Services does not have the authority to use physical pressure or deprivation in interrogations under Israeli law. This applied even in cases of “ticking bombs” as described above. By so doing, it ruled in favor of a long list of petitioners who had requested the Court to order the GSS to cease shaking suspects during interrogations.
The Court conceded that a criminal’s interrogation is not a negotiation process between two open and honest merchants, conducting their affairs in mutual trust. An interrogation is rather a “competition of minds,” in which the investigator attempts to penetrate the suspect’s mind and to elicit the information that the investigator seeks to obtain. And society has a natural desire to uncover the truth, in accord with the public interest in exposing crime and preventing it.
The Court further conceded that even a democratic society, desirous of liberty, seeks to fight crime and to that end is prepared to accept that an interrogation may infringe the human dignity and liberty of a suspect provided that this is done for a proper purpose and that the harm does not exceed that which is necessary. However, the Court also noted that the rules pertaining to investigations are important to a democratic state: “They reflect its character. An illegal investigation harms the suspect’s human dignity. It equally harms society’s fabric.”
For example, the Court accepted that “a person undergoing interrogation cannot sleep like one who is not being interrogated… This is often the inevitable result of an interrogation.” However, it ruled that the above described situation “is different from one in which sleep deprivation shifts from being a ‘side effect’ of the interrogation to an end in itself. If the suspect is intentionally deprived of sleep for a prolonged period of time, for the purpose of tiring him out or ‘breaking’ him, it is not part of the scope of a fair and reasonable investigation. Such means harm the rights and dignity of the suspect in a manner beyond what is necessary.”
The Court was prepared to presume that if a GSS investigator, who applied physical interrogation methods for the purpose of saving human life, was criminally indicted, the “necessity defense” afforded by the Israeli Penal Law “is likely to be open to him in the appropriate circumstances.” However, the Court was not prepared to establish in advance of any such legal proceedings that particular physical interrogation methods (if any) could be implied from the “necessity defense.” Instead, the Court argued: “If the State wishes to enable GSS investigators to utilize physical means in interrogations, it must enact legislation for this purpose. This authorization would also free the investigator applying the physical means from criminal liability.”
As a final word, the Court acknowledged the harsh reality of terrorism in which Israel finds herself: “We are aware that this decision does not make it easier to deal with that reality. This is the destiny of a democracy – it does not regard all means as acceptable, and the ways of its enemies are not always open before it. A democracy must sometimes fight with one hand tied behind its back. Even so, a democracy has the upper hand. The rule of law and the liberty of an individual constitute important components in its understanding of security… The possibility that this decision will hamper the ability to properly deal with terrorists and terrorism disturbs us. We are, however, judges. We must decide according to the law. This is the standard that we set for ourselves… Therefore, in deciding the law, we must act according to our purest conscience.”
Consequently, the Court ordered, that the GSS does not have the authority to “shake” a man, to hold him in the “Shabach” position with his hands tied behind his back, or to deprive him of a sleep in a manner other than that which is inherently required by the interrogation. Moreover, the “necessity defense” could not serve as a basis of authority for interrogation practices or for directives to GSS investigators, allowing them to employ interrogation practices of this kind. However, the Court concluded that “our decision does not negate the possibility that the “necessity defense” will be available to GSS investigators, either in the choice made by the Attorney-General in deciding whether to prosecute, or according to the discretion of the court if criminal charges are brought.”
Questions for further thought:
1) From the legal point of view: the Israeli Penal Law states that: “No person shall bear criminal responsibility for an act that was immediately necessary in order to save his own or another person’s life… from a real danger of severe injury… there being no alternative but to commit the act.” Doesn’t the wording of the law indicate that a GSS investigator who is forced to apply necessary pressure to a suspect in a “ticking bomb” situation is exempt, from the very outset (and not just after the fact, at best), from all criminal liability?
2) From the practical point of view: can it be right that, due to the absence of explicit legislation, the State should be helpless in those rare emergencies defined as “ticking bombs” and would not be authorized to order the use of exceptional interrogation methods in such circumstances? Does not every country have an implicit obligation to defend its existence and well-being, and to safeguard the lives of its citizens? Doesn’t the State, as well as its agents, have a natural right to “self-defense,” in the broad meaning of the term, against terrorist organizations that seek to take its life and the lives of its citizens?
To be continued!